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Interim Decision and Order, April 26, 1994

STATE OF NEW YORK:DEPARTMENT OF ENVIRONMENTAL CONSERVATION INTERIM DECISION

In the Matter

of

the Alleged Violation of Articles 27 & 24 of
the New York State Environmental Conservation Law, and 6 NYCRR Part 360 by

AND

ORDER

File No. 1-1603

PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION, and
JOSEPH PARZIALE and JOSEPH SPADA,
individually and as owners/principals of
PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION, and
AMITY DEVELOPMENT CORPORATION and
STEVEN W. SCHWARTZ, individually and as
President of AMITY DEVELOPMENT CORPORATION

Respondents

This Decision is in response to the August 24, 1993 Rulings/Order of Disposition and Interim Hearing Report of Administrative Law Judge ("ALJ") Frank Montecalvo in the above captioned matter. The ALJ recommends dismissal of all charges based on his conclusion that Respondents' operation was exempt from permitting requirements pursuant to former 6 NYCRR 360.1(f)(1)(ix). The ALJ concluded that the two charges relating to subdivisions of 6 NYCRR 360.8(a) - "Operating Requirements Applicable to All Solid Waste Management Facilities" should be dismissed because the exemption which he found applicable relieved the Respondents from compliance with any provision in former 6 NYCRR Part 360 ("Part 360"). The version of 6 NYCRR Part 360 referred to was effective through December 30, 1988. For the reasons discussed below, I find that the facility does qualify as exempt from the permitting requirements of Part 360, albeit for different reasons, but that even so, it was required to comply with the operating standards found in former 6 NYCRR 360.8(a).

Operating without a Permit

The Department Staff have charged Respondents with operating a solid waste management facility without a permit. The Respondents contend that the facility in question is exempt from all requirements of Part 360.

The exemption at issue states:

(f) Exemptions. (1) The solid waste management facilities and operations named in this paragraph are exempt from this Part unless they manage waste oil. ...

(ix) Any operation or facility which receives or collects only nonputrescible solid waste, and beneficially uses or reuses or legitimately recycles or reclaims such waste, or stores or treats such waste prior to its beneficial use or reuse or legitimate recycling or reclamation is exempt. Said operations or facilities include, but are not limited to, automobile junkyards, citizen programs, metal recovery from nonhazardous sludges, municipal operations, secondary materials dealers, and private and commercial salvage activities which collect, separate, clean or assembly materials, including but not limited to paper, corrugated board, metals, containers, glass, white goods, textiles and rubber. [Former 360.1(f)(1)(ix)]

The exemption language standing alone would lead to the conclusion that all or virtually all of the wastes received would need to be recycled to qualify for the exemption. However, the rule goes on to provide examples of facilities that would qualify under this exemption. It is apparent from these examples that the intent of the rule was to provide a broader exemption.

ALJ Montecalvo concluded that the inquiry into whether the exemption applied to any given operation should center on the nature of the facility and whether recycling or reclamation was an actual purpose or objective of the facility. I conclude that the examples only serve to show that the intent of the drafters was to broaden the exemption to operations whose principal purpose is recycling or reclamation or storage prior thereto. However, based on the findings in the August 24, 1993 ruling, it can be concluded that the facility's principal purpose fits within this description. Therefore, I conclude that it was entitled to the exemption during the time period in question.

Compliance with the Operating Standards in Part 360

Separate and apart from the question of whether the facility was required to obtain a permit to operate is whether it was required to comply with the operating standards in Part 360.

ECL 27-0707(1) establishes a permitting requirement for new solid waste management facilities. It states that such requirement is to go into effect after the Department has adopted rules governing solid waste management facilities pursuant to ECL 27-0703(1). Those rules were adopted by the Department and are found in Part 360.

However, another subdivision in the same section of law states that:

Nothing herein shall relieve any person of the responsibility of fully complying with all applicable laws, rules and regulations, including regulations of the department, promulgated pursuant to subdivision one of section 27-0703, in the operation of a solid waste management facility not subject to the department's review under section 27-0707. [ECL 27-0707(4).This subdivision was slightly modified, and was renumbered to be subdivision 6, by Chapter 70 of the Laws of 1988.]

Subdivision one of 27-0703 grants the Department the power to adopt regulations governing the operation of solid waste management facilities, and it requires that such regulations be directed at the prevention or reduction of (a) water pollution, (b) air pollution, (c) noise pollution, (d) obnoxious odors, (e) unsightly conditions caused by uncontrolled release of litter, (f) infestation of flies and vermin, and other conditions inimical to the public health, safety and welfare.

Given the charge under ECL 27-0707(1), the only solid waste management facilities that would not be subject to permit review are those that have been exempted from the permit requirement in the governing rules. Yet, by statute, these facilities must still comply with the operating requirements of Part 360. Therefore, the exemption language can only be read to apply to the permit requirement; it cannot be read to exempt any facility from the requirements of Part 360 relating to the operations since that would be contrary to express language of the statute.

The ALJ noted that, if the exemption did not apply (or, as framed here, if the exemption does not extend to the operating requirements), there was a question concerning whether former 6 NYCRR 360.8(a)(1) was intended to apply to leachate. That provision requires that solid waste not be deposited in, and be prevented from, entering surface waters or groundwaters. Based on my conclusion, it is appropriate to resolve this question in this Interim Decision as well.

The issue is not, as framed in the Ruling, whether the terms "solid waste" and "leachate" are mutually exclusive. It is clear that they are not. "Solid waste" was at the time in question defined as "any garbage, refuse, sludge or any other waste material which is not excluded under paragraph (6) of this subdivision." [6 NYCRR 360.1(c)(1)]. Leachate is not excluded under paragraph (6).

On the contrary, common sense would suggest that the drafters intended to include leachate within the meaning of the term "solid waste." Of all the usual practiced methods of solid waste management, none of them expose solid waste to groundwater except via suspension in leachate. Therefore, I conclude that, even without the clarifying language that was adopted in subsequent revisions to Part 360, the intent of the former 6 NYCRR 360.8(a)(1) was to require management of solid wastes so that leachate would not reach groundwater.

THEREFORE, HAVING CONSIDERED THIS MATTER, IT IS ORDERED THAT:

The August 24, 1993 Rulings/Order of Disposition of ALJ Montecalvo is reversed insofar as it is inconsistent with this Interim Decision and Order.

This hearing is remanded to ALJ Montecalvo for further proceedings consistent with this Interim Decision and Order.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision and Order to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 26th day of April, 1994.